It could be that politics trumps all in Washington. Because the Obama administration’s announcement Monday that it would try Khalid Sheik Mohammed and his alleged co-conspirators before military commissions in Guantanamo Bay was not about national security.

It is a political decision — announced the same day President Barack Obama launched his reelection campaign — for it sacrifices basic tenets of who we are as a nation, and is likely to have serious national security ramifications for many years to come.

The administration chose to try the Sept. 11 defendants in military commissions despite many facts we know about those panels. Civilian federal courts have convicted more than 400 terrorists since Sept. 11, 2001, and have more than 200 years’ worth of experience prosecuting complex terrorism cases. The military panels, by contrast, have so far prosecuted only six terrorists.

Military prosecutors and judges have little experience handling terrorism cases and almost no legal precedent to guide them. The commissions’ verdicts are more vulnerable to reversal on appeal than those of civilian tribunals. If prosecutors want to seek the death penalty, the defendants may not be allowed to plead guilty. If they do get the death penalty, the warrior status conveyed by the military commissions is likely to mean Al Qaeda will claim they are martyrs.

In addition, prosecuting the Sept. 11 defendants at Guantanamo Bay could prove enormously expensive. The military will likely need to shuttle the FBI agents, attorneys, witnesses, victims and other observers back and forth from Washington to Guantanamo for countless prep sessions and pretrial hearings, as well as the trial itself.

The American public, meanwhile, won’t be able to see this momentous trial. It will be secreted away on a forbidden Caribbean island, held behind blast-proof concrete walls topped with concertina wire.

But the most important result of this politicization is that Guantanamo Bay and the military commissions may now become a permanent fixture of U.S. national security policy. Bills proposed in Congress would prohibit not just current Guantanamo detainees from coming to the U.S. for trial, but forbid the FBI and local law enforcement from handling terrorism cases at all. Instead, they would be required to leave terrorism suspects and investigations to the U.S. military.

Under the proposed legislation, suspects captured abroad couldn’t be brought into the U.S., so either the prison population at Guantanamo would swell, or the U.S. would have to open new overseas prisons or turn suspects over to foreign regimes. None are palatable options, and all undermine, rather than enhance, U.S. national security.

The president’s decision responds to a dramatic shift in U.S. politics since he took office. When he signed the executive order on Jan. 21, 2009, to close Guantanamo Bay, Obama was flanked by 16 retired military leaders, who supported him. Former Secretary of State Colin Powell, Defense Secretary Robert Gates and Sen. John McCain (R-Ariz.) had all argued vehemently for closing the Guantanamo prison — describing it as a stain on America’s reputation.

But that consensus was quickly broken. Former Vice President Dick Cheney charged that closing Guantanamo would make the United States more vulnerable to terrorist attacks. McCain then insisted that terror suspects don’t deserve jury trials and closing Guantanamo was “premature.”

Soon, even trying suspected terrorists in the U. S. – routine in the Bush administration — was described by many politicians, Democratic as well as Republican, as deadly.

House Republican Leader John Boehner (R-Ohio) called such trials “the first step in the Democrats’ plan to import terrorists into America.” Liz Cheney suggested that the 1993 World Trade Center bombing trials caused the Sept. 11 terrorist attacks.

Ahmed Ghailani, the one Guantanamo prisoner transferred to the U.S. for trial, was safely prosecuted in Manhattan last fall for blowing up U.S. embassies in Africa. But the critics weren’t silenced. They merely shifted focus to the charges on which Ghailani was acquitted. It seemed beside the point that the Tanzanian terrorist is serving life in prison without parole.

When Attorney General Eric Holder said in 2009 that civilian court is the best place to try the Sept. 11 defendants, he cited the huge volume of evidence amassed for years by the nation’s most seasoned investigators and prosecutors. Holder expressed no doubt that he’d win swift convictions and stiff sentences. Given federal prosecutors’ 91 percent conviction rate in terrorism cases, he was probably right.

The Justice Department could have brought Khalid Sheikh Mohammed and his co-defendants to trial in federal court years ago, but prosecutors waited. Now, the administration blames temporary congressional restrictions on using Defense Department funding for Guantanamo detainee transfers for its failure.

But that sounds like an insufficient explanation for sacrificing the basic U.S. principle that suspected criminals deserve a fair public trial before an independent judge and a civilian jury — as mandated by the Constitution.

That’s not because we are “soft” on terrorists, but because we want to stand firm for American values, demonstrating to the world that the rule of law is not something to be discarded when a nation feels insecure. Obama, a constitutional law professor who taught classes on due process and equal protection, should know that.

When Holder announced on Monday that the administration had changed its mind about where to try the alleged Sept. 11 perpetrators, you could almost see him being buffeted by the changed political winds. It was not his finest hour.

And for Obama — who seems to have abandoned his slogan, “Change we can believe in” — it was a lousy way to kick off his reelection campaign.
Daphne Eviatar is a senior associate in the law and security program of Human Rights First, which has been monitoring the military commissions since their creation in 2002.